Among the regulatory reform proposals passed by the House of Representatives this year was the “REINS Act,” a proposal to require Congressional approval before major regulations could take effect. Supporters and opponents of this bill have presented the REINS Act as a deregulatory tool. The actual effect of the REINS Act is likely to be more modest, for reasons I explain in an article forthcoming in the NYU Journal of Legislation and Public Policy (available on SSRN here). While I believe the REINS Act would significantly increase legislative accountability for regulatory policy, I doubt it would stop all that many regulatory initiatives, particularly those with significant public support.

Passage of the REINS Act has always been a long shot. Though it passed the House of Representatives, the Senate has shown little interest. This month’s election makes the REINS Act’s chance of becoming law even more remote, as the Democrats have increased their Senate majority and President Obama has said he would veto REINS were it to reach his desk. Debates over regulatory reform will continue nonetheless. So, for those interested, here’s the abstract of the paper SSRN.

Over the past several decades, the scope, reach and cost of federal regulations have increased dramatically, prompting bipartisan calls for regulatory reform. One such proposed reform is the Regulations of the Executive in Need of Scrutiny Act (REINS Act). This proposal aims to restore political accountability to federal regulatory policy decisions by requiring both Houses of Congress to approve any proposed “major rule.” In effect, the REINS Act would limit the delegation of regulatory authority to federal agencies, and restore legislative control and accountability to Congress. This article seeks to assess the REINS Act and its likely effects on regulatory policy. It explains why constitutional objections to the proposal are unfounded

Yesterday, the House passed the REINS Act on an almost exclusively party-line vote, 241-184. All the House Republicans voted for the bill, as did four Democrats. Thought the bill passed the House, it’s not about to be enacted into law. The Senate is unlikely to take up the bill and President Obama has promised to veto the REINS Act should it somehow reach his desk.

Today the House of Representatives is expected to vote on the REINS Act, a bill to enhance political accountability over regulatory decisions. The bill has two essential features. First, it bars new “major” regulations (those anticipated to cost more than $100 million annually) from taking effect unless approved by both houses of Congress. Second, it creates an expedited review process that forces each house to vote on each major rule. So while requiring Congressional approval, REINS prevents members of Congress from ducking their responsibility to vote yay or nay.

REINS is a controversial bill, in part because it effectively limits the delegation of broad regulatory authority to federal agencies, but to read some critics, REINS would usher in an anti-regulatory armageddon. While I support the legislation, for reasons detailed in these posts (and summarized in this NRO piece), I recognize that there are reasonable arguments to be made on the other side. What’s so interesting watching this debate, however, is how many opponents refuse to make them, relying instead on inaccurate and fanciful characterizations of the bill. It’s telling when opponents of legislation are unable or unwilling to describe it accurately when making their case.

To take one example, US PIRG’s Ed Mierzwinski argues that the REINS Act would lead to unsafe toys on the market and emasculate the CPSC.

One bill, the REINS Act, would not only allow but require congressional meddling in the implementation of all public health and safety rules. A single member of Congress, at the behest of some powerful special interest or campaign contributor, could block the public database, block science-based lead standards for children’s products, block crib safety rules or any number of protections that provide a safer consumer marketplace.

Last month, University of Richmond law professor Noah Sachs published an article in The New Republic criticizing the proposed REINS Act, which would require Congressional approval before any major regulation could take effect. As with many attacks on the REINS Act, Sachs’ article misrepresents the legislation to make its case. As there is a hearing on the bill today, I thought I’d address some of the arguments he makes. In case some find this to be redundant with my prior posts on the subject (1, 2, 3), the bulk of this post is below the fold. […]

Tomorrow the House Judiciary Committee will have a second hearing on the REINS Act, a bill to increase legislative control over and accountability for federal regulatory policy. The central provisions of the REINS Act provide that new “major rules” – those regulations expected to cost over $100 million annually – may not become effective unless a joint resolution of approval passes Congress. The Act would further create an expedited review process designed to ensure that there is a prompt up-or-down vote in each house of Congress on all new “major” rules, which represent less than five percent of the 3,000-plus federal regulations promulgated each year. My prior posts on the REINS Act are here and here, and my congressional testimony is here.

The purpose of the REINS Act is to prevent the imposition of major regulatory initiatives without Congressional approval. Because of Congress’ long history of delegating broad rulemaking authority to administrative agencies, there is relatively little legislative control of, and accountability for, the regulations agencies impose on the American people. The best way to ensure greater legislative accountability is to require members of Congress to vote “yea” or “nay” on new major rules. This will prevent unpopular rules from being adopted, but also ensure that Congress is accountable for those new major rules that are imposed. If the public wants more regulatory protections in particular areas – and it may well – the REINS Act will not stand in the way. Environmentalist groups and progressive academics see the REINS Act a bit differently. See, for instance this post by the NRDC’s David Goldston or this article from The New Republic by Noah Sachs.

On Monday, I testified before the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law on the REINS Act. The other witnesses were former Rep. David McIntosh and Sally Katzen, who headed the White House Office of Information and Regulatory Affairs in the Clinton Administration. Rep. McIntosh and I expressed support for the REINS Act while Katzen did not. Here are my testimony, my prior post on this hearing, and the C-Span video.

It was a rather short hearing, but the questioning was fairly aggressive, particularly from the Democrats on the subcommittee, including Rep. John Conyers, who attended as the ranking minority member of the committee even though he is not on the subcommittee. During the hearing I was struck by how many of the questions from members were premised on a misunderstanding (or misrepresentation) of the bill, both structurally and substantively. I recognize members of the minority may not have had the most time to prepare for a Monday hearing for which there had only been several days official notice. Nonetheless, I was surprised how unprepared (or unwilling) some of the committee seemed to be to address the bill on its own terms. Perhaps I’ve just lived in Ohio too long.

Several members of the subcommittee suggested the REINS Act imposed unconstitutional constraints on executive power, particularly the executive’s responsibility to faithfully execute and enforce federal laws. Therefore, they suggested, the REINS Act could conflict with Article II, Section 1 of the Constitution. Set aside the curiosity of House Democrats, including Rep. Conyers, defending executive power. This objection is based on a fundamental confusion about the nature of executive power. The power to “enforce” the laws – that is, the power to take action to see that legal rules are complied with – is distinct […]

Tomorrow afternoon (back willing) I will be in Washington, D.C. to testify before the House Judiciary Committee’s Subcommittee on Courts, Commercial and Administrative Law on the Regulations from the Executive In Need of Scrutiny (REINS) Act. This bill would require congressional approval before new “major” regulations — those regulations expected to cost in excess of $100 million per year — could take effect. It also creates an expedited process for consideration of new regulations, much like that which has been used in conjunction with “fast track” trade negotiation authority, to ensure that both Houses of Congress take up-or-down votes within a short time frame. For more detail on the bill, here is a brief white paper I wrote for the Federalist Society on the REINS Act’s central provisions.

The primary purpose of the Act is to ensure greater political accountability for major regulatory initiatives. Federal regulatory agencies only have that power delegated them by Congress, but regulatory agencies are not always particularly responsive to Congressional concerns. Nor are members of Congress always willing to take responsibility for how the power they have delegated gets exercised. Requiring a straight up-or-down vote on new major regulations is a way to address both problems and the expedited procedures ensure that traditional legislative logjams and special interest obstruction won’t prevent consideration of significant regulatory initiatives. This is why I believe the REINS Act is more about transparency and political accountability than anything else.

I have no idea whether the REINS Act has much hope of passage. The bill was part of the Republican leadership’s “Pledge to America” and was just introduced in the House, where I would think its prospects are good. The Senate presents a more significant challenge, as does the White House. At present, most support for the REINS Act appears to […]